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Duncan v. Mississippi Department of Corrections, Records Department

United States District Court, N.D. Mississippi, Greenville Division

June 19, 2018




         Petitioner Wendell Duncan, a prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to challenge issues surrounding his parole eligibility and earned-time calculation. Respondent has moved to dismiss the petition, and Duncan has failed to respond to the motion. The time to do so has passed, and this matter is ripe for review. For the reasons set forth below, Respondent's motion will be granted.


         Background and Procedural History

         Wendell Duncan is an inmate housed in the Mississippi Department of Corrections (“MDOC”), pursuant to four convictions and sentences he received in the Circuit Court of Washington County, Mississippi: (1) a 1994 conviction for burglary of a business and conspiracy to commit burglary of a business, to which he was sentenced as an habitual offender to serve consecutive terms totaling twelve years; (2) a 1995 armed robbery conviction, to which Duncan was ordered to serve thirty years as a non-habitual offender, with the sentence to run consecutively to the previously imposed twelve-year sentence; and (3) a 1995 guilty plea to simple assault on a law enforcement officer, to which Duncan was sentenced to a five-year term as an habitual offender, with the sentence to run consecutive to Duncan's other sentences without eligibility for parole. See Docs. #13-1, #13-2, & #13-3.

         On November 17, 2016, MDOC forfeited a total of 1, 260 days of Duncan's accrued earned time, because of state and federal actions filed by Duncan that were dismissed as frivolous. See Doc. #13-5. On August 8, 2017, Duncan was granted parole on his thirty-year sentence for armed robbery and began serving his mandatory five-year sentence for simple assault on a police officer. See Doc. #13-4. On October 6, 2017, MDOC forfeited an additional 180 days of Duncan's accrued time due to the dismissal of a lawsuit deemed frivolous. See Doc. #13-5.

         Duncan engaged in near-continuous litigation in state and federal courts, arguing that MDOC's calculation of his time is incorrect. See Docs. #13-9 through #13-20 & #13-22 through #13-25. He also filed numerous grievances concerning the issue through MDOC's Administrative Remedy Program (“ARP”), often filing new grievances before older ones could be addressed, thereby creating a backlog of ARP filings. See Doc. #13-6 through #13-8, #13-31, & #13-26.

         On or about January 5, 2018, Duncan filed this federal habeas action, challenging MDOC's calculation of his earned time and the fact that he has not been granted release on parole. Doc. #1. Specifically, Duncan claims that his due process rights were violated when he was not granted parole on July 10, 2016, as if he had been paroled on his eligibility date, MDOC would have been unable to take his earned time on November 17, 2016 for filing frivolous lawsuits. See id.



         Federal habeas relief is available to Duncan only on the ground “that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir. 1984). The issues of whether Duncan was improperly denied parole until August 8, 2017, and whether MDOC improperly calculated or forfeited his earned time are not constitutional claims upon which habeas relief may be granted. A federal habeas action “based on any argument that state courts are incorrectly applying their own law. . . is not a basis for [federal habeas] relief.” Wansley v. Miss. Dep't of Corrs., 769 F.3d 309, 312 (5th Cir. 2014).

         A. Parole

         Under federal law, there is no recognized right to parole. See Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”). Under Mississippi law, absolute discretion regarding parole decisions rests with the Parole Board. See Miss. Code Ann. § 47-7-1, et seq.; Mitchell v. State, 561 So.2d 1037, 1039 (Miss. 1990) (“The granting of parole or denial of parole. . . is the exclusive responsibility of the state parole board[.]”). Both the Mississippi Supreme Court and the Fifth Circuit have held that Mississippi's permissive parole statutes do not create a liberty interest that will support a habeas action for failure to parole. See Davis v. State, 429 So.2d 262, 263 (Miss. 1983) (holding that the Mississippi parole law provides only “a mere hope that the benefit will be obtained”); Scales v. Mississippi State Parole Board, 831 F.2d 565, 566 (5th Cir.1987) (citing Irving v. Thigpen, 732 F.2d 1215, 1217-1218 (5th Cir.1984)(holding “the Mississippi [parole] statute does not create any constitutionally protected liberty interest in parole to which procedural due process considerations attach”)); see also Miss. Code Ann. § 47-7-1, et seq. As the Fifth Circuit has noted, “when a prisoner has no liberty interest in obtaining parole. . . he cannot complain of the constitutionality of procedural devices attendant to parole decisions.” Wansley, 769 F.3d at 213-13. Therefore, the Court finds that Duncan's challenge to his parole eligibility prior to the date he was actually paroled to his mandatory five-year sentence is unavailing. Duncan has failed to raise a federal issue for relief.

         B. ...

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